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A Robin Hood of the law

Louis D. Brandeis: A Life. By Melvin Urofsky. Pantheon Books; 976 pages; $40. Buy from Amazon.com

IN SEPTEMBER 1905 an overseer at a laundry in Portland, Oregon, made a woman, who happened to be a labour activist, work overtime in breach of a state law that no female should have to work more than ten hours a day. The worker sued, and the owner of the laundry, one Curt Muller, was fined $10. Muller appealed to the Supreme Court of the United States, claiming that the Oregon statute violated the “due process” clause of the 14th amendment. The National Consumers League briefed a successful Boston lawyer, Louis Brandeis, to defend the state's protective legislation.

Brandeis realised that his main difficulty was that the Supreme Court, with a conservative majority, had decided only three years earlier that a New York state law forbidding long hours in a bakery was in breach of the constitution. His strategy must be to show that, although states might not intervene in the contractual relation between employer and employee, the state government did have, under its police power, the right to protect the health and safety of its citizens. He wrote the first of what came to be called “Brandeis briefs”. It was 113 pages long. Only three pages discussed the law, including the previous case. The rest argued from what Brandeis called “facts of common knowledge”, drawn mainly from British and European health reports, that Oregon was simply protecting women's health.

Before this, American thinking about the relationship between the state and society had been dominated by what was called “legal classicism”. Its two pillars were the sanctity of contract and “substantive due process”. This latter, a concept originally intended to guarantee the rights of newly emancipated slaves, was used to protect the rights of private property from interference by the state.

Brandeis was not the first American jurist to challenge the exploitation of legal pedantry in the service of reactionary politics. Years earlier Justice Oliver Wendell Holmes pleaded that “the life of the law has been not logic but experience”. Others in the early 20th century saw that the law must reflect the new circumstances of an urban, industrialised America where workers were playthings in the hands of giant corporations.

Brandeis, however, showed how it could be done: by deploying solid masses of sociological fact (a method that led, for example, to the 1954 Brown ruling that racial segregation was unconstitutional). He served on the Supreme Court for close to a quarter of a century and with liberal colleagues established a new sociological jurisprudence, responsive to the changing realities of ordinary life. Much of the legal conflict of the past few years in the United States has resulted from the efforts of a new generation of conservatives to reverse the work of Brandeis and his companions and disciples on the court.

Melvin Urofsky's lapidary new biography is a rich study of a remarkable life. Brandeis was born in 1856, into a family of non-religious Jews a few years after they emigrated from Germany to the United States. After shining at the Harvard Law School, he set up as a commercial lawyer and within a few years was financially secure for life.

Increasingly he found himself defending what he saw as the public interest against what were known as “the interests”. He fought an elevated-railway company and he campaigned for savings banks to be allowed to provide life insurance for poor people. He defended unions and with great courage challenged the efforts of the Morgan “interests” to build a rail monopoly in New England. “I am rapidly becoming a Socialist,” he exclaimed. “What the bankers leave undone their lawyer minions supply.”

He was, though, no socialist. He was in many ways typical of the Progressives, middle- and upper-class people who were alarmed at what the growth of metropolitan cities and huge corporations were doing to a rustic, egalitarian America. One of the keys to Brandeis's philosophy was a very un-socialist horror of bigness, in unions as well as corporations. He was a pragmatist, one who instinctively reached for compromise.

Brandeis was never a practising Jew, but he was a passionate convert to Zionism. He understood that for many American Jews, America itself was their Zion yet his services to the Jewish homeland in Palestine were great. Like many Zionists, he was utterly unsympathetic to the Arabs. “As against the Bedouins”, he wrote, “our pioneers are in a position not unlike the American settlers against the Indians.”